OCTOBER 3, 2016
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES
COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN Judge
TIMOTHY R. WHALEN Lake Andes, South Dakota Attorney for
B. ANDERSON of May, Adam, Gerdes & Thompson, LLP Pierre,
South Dakota Attorneys for appellee.
The South Dakota Division of Criminal Investigation (DCI)
hired Mark Black as an agent in 2005. Black entered DCI as a
veteran law-enforcement officer and quickly distinguished
himself as an excellent investigator. However, DCI terminated
Black's employment after a series of incidents and
disciplinary actions. Black exhausted each level of
administrative review, including a hearing with the Civil
Service Commission (CSC), which found just cause for his
termination. Black appealed that decision to the circuit
court, which affirmed. Black appeals. We affirm.
DCI hired Black as an agent on August 5, 2005. He entered DCI
as an experienced law-enforcement officer and quickly became
one of DCI's top five agents. Black was the first to
receive the newly created Distinguished Service Award in
2009. His success and excellent performance evaluations,
however, were accompanied by accounts of emotional
instability and lapses in judgment. In his first year on the
job, for example, he received high praise on a September 7,
2006 performance evaluation. But the evaluation also said
Black needed "to continue to remind himself to maintain
his composure and not allow his emotions to take over."
Black's evaluations contained similar warnings for the
next several years, including one report in 2008 that stated:
"Mark on occasion makes poor decisions with regards to
his relationship with others. Mark had at times a very
difficult 6 month period and became frustrated and
disappointed. This became an issue when he sent a resignation
email to all agents in the DCI and to the Attorney
General." The email incident resulted in a two-day
suspension, enrollment in a sixty-day work-improvement plan
and counseling. Black successfully completed these programs.
Problems also arose outside of work. On September 13, 2013,
Black commented on the Keloland blog about a SWAT training
event. Because his Facebook page showed he was a DCI agent,
Black's comment on the Keloland blog appeared to have
been made on behalf of DCI. Black commented: "This story
is an excellent example of a waste of time by the media. This
'mother' would rather whine to get her face on camera
than be a parent and explain to her child, it is the people
that protect us practicing to keep us safe from bad
guys." DCI disciplined Black with a one-day suspension.
Black also made a tape recording in the Brown County
courthouse in Aberdeen, portions of which were transcribed by
a third party and posted online as a YouTube video. The
recording featured a conversation between Black and another
DCI agent about an ongoing investigation while they were
waiting to question an individual. Black used foul language
and made inappropriate statements.
In 2013, Black went through a contentious divorce with his
now ex- wife, Patty Black. In June 2013, he spray painted the
phrase "Patty wins" on the boat they jointly owned.
The boat was parked in front of the marital home. Black and
Patty finalized their divorce in August 2013.
On February 13, 2014, Patty filed a petition for an ex parte
temporary protection order against Black. Patty attached to
her petition a handwritten letter from Black containing the
As for my temper, rage, and razor tongue, I finally figured
out how bad I hurt everyone around me. Especially you. I said
numerous hateful things . . . .
I know you feel like a victim . . . .
Yes babe I know I punched walls and doors, broke dishes,
. . . .
I pushed and shoved you as well for that I am sorry too. A[n]
honest reflection is that we both mistreated each other . . .
court issued an ex parte temporary order of protection
against Black. In light of the allegations in the letter, DCI
required Black to surrender his service weapon. That same
day, Black's supervisor, Brian Zeeb, began an
investigation and placed Black on administrative leave.
Because of the allegations of domestic abuse and further
examples of Black's lack of emotional control and poor
judgment, Zeeb sent a letter to Black on February 21, 2014.